Sayer-Jones v Director of Public Prosecutions

The charges

1. Because of the importance placed by the DPP on the plea bargain, it is necessary to set out the history of the charges in some detail.
2. By court attendance notice filed on 8 May 2018 on behalf of Detective Sergeant McLennan, the plaintiff was charged with two offences against s 192E(1)(b) (dishonestly obtaining a financial advantage by deception). The maximum penalty for the offence is 10 years' imprisonment.
3. On 4 June 2018, the plaintiff elected, pursuant to s 260(1) of the Criminal Procedure Act 1986 (NSW) to have the matter proceed on indictment. The matter was allocated to Ms Moore, a solicitor at the DPP.
4. On 17 July 2018 Ms Moore was advised by her supervisor that all communications with the plaintiff were to be conducted by email. She deposed that she adhered to that direction except on two occasions when the plaintiff telephoned her and when the matter was before the Court and the plaintiff approached her.
5. On 23 August 2018 the DPP took over prosecution of the charges (being the two charges under s 192E laid by Detective Sergeant McLennan in the first court attendance notice) pursuant to s 9 of the Director of Public Prosecutions Act 1986 (NSW) (the DPP Act). The DPP also gave notice pursuant to s 10(1)(b)(ii) of the DPP Act that it had done so. This facilitated the fulfilment of the charge certification and conference functions for which, relevantly, the DPP was authorised: s 65 of the Criminal Procedure Act.
6. On 12 September 2018 the DPP advised the plaintiff by email that the DPP had requested that the police lay new charges: one count under s 319 (making or using a false official instrument to pervert the course of justice, for which the maximum penalty is 14 years' imprisonment); an alternative count under s 192G(b) (dishonestly making a statement that is false or misleading with the intention of obtaining a financial advantage, for which the maximum penalty is 5 years' imprisonment); and 12 counts of making a false statement with intent to defraud under s 192E.
7. A further court attendance notice was filed on behalf of Detective Sergeant McLennan. It contained 16 charges (the expanded court attendance notice), which included the two original charges under s 192E. When the matter came before the Local Court on 13 September 2018, it was adjourned to 20 September 2018.
8. On 20 September 2018, the committal hearing, which had been listed for 11 October 2018, was adjourned for plea negotiation.
9. The DPP offered to withdraw existing sequences 1 and 2 (the offences under s 192E(1)(b)) and not elect to proceed on indictment and indicated that it would accept a plea to two rolled up counts under s 192G(1)(b).
10. Two further court attendance notices were prepared and endorsed "to be served at court". The named prosecutor was Detective Sergeant McLennan. One court attendance notice contained the offence which had been sequence 4 on the expanded court attendance notice. The details of sequence 4 (as amended on 29 October 2018) were set out in the court attendance notice as follows: "Crimes Act 1900, Section 192G(b) Publish etc false misleading material to obtain financial advantage or cause disadvantage between 10/11/17 and 15/12/17 at Sydney did, dishonestly make a statement, namely that he had served the Statement of Claim on The Undone Pty Ltd, first defendant and four other defendants [by] Express Post on 4 November, 2017, which was false in a material particular, with the intention of obtaining a financial advantage, namely default judgment in case number 2017/00333976."
11. The second court attendance notice contained the offence which had been sequence 15 on the expanded court attendance notice. The details of sequence 15 (as amended on 29 October 2018) were set out in the court attendance notice as follows: "That between 27/3/18 and 16/04/18 at Sydney did, dishonestly make a statement, namely that he had served the Statement of Claim at the defendant's business premises, which was false in a material particular, with the intention of obtaining a financial advantage, namely default judgment in case number 2018/0084331."
12. On 22 October 2018 the plaintiff, who admitted that he had received legal advice, indicated that he was prepared to plead guilty to sequences 4 and 15, being two offences against s 192G(b) of the Crimes Act.
13. On 25 October 2018 at 10.54am the plaintiff sent an email to Ms Moore in which he said in part: "I propose accepting a plea subject to you articulating what actual penalty you will be seeking. It is really important that I clearly understand what penalty you will be seeking because any custodial term is unacceptable."
14. On 25 October 2018 at 1.08pm Ms Moore sent the statement of facts to the accused by email. She said in the email: "If you disagree with any portion of the facts attached, this will need to be indicated by you to the court on the plea and a disputed facts hearing will follow."
15. Ms Moore also said: "Without prejudice: You have requested an indication of the penalty the prosecution would seek on a plea as outlined above. I note I have previously indicated that any indication I give as to submissions on penalty in no way binds the court. Taking the objective seriousness of the offences only into account, together with a consideration of previous statistics from the judicial commission of NSW, in my view the s.5 Crimes (Sentencing Procedure) Act threshold has been crossed, meaning no sentence other than imprisonment is appropriate. However that would not necessitate a sentence of full time imprisonment and in my view a Community Corrections Order would be within the appropriate range."
16. On 25 October 2018 the plaintiff asked the DPP for an adjournment to obtain legal advice as to the facts so that negotiations about the facts could occur. The DPP agreed to an adjournment of two weeks to 13 November 2019 for negotiations about the facts, failing which the matter could be listed for a disputed facts hearing.

The plaintiff's plea of guilty to the charges

1. On 29 October 2018 the plaintiff entered a plea of guilty before Allen LCM to sequences 4 and 15.
2. At the hearing on 29 October 2018, the plaintiff did not seek an adjournment as foreshadowed in his email referred to above. The statement of facts and the plaintiff's criminal history were admitted into evidence without objection. The facts were not, at that stage, agreed. A sentence assessment report was ordered. The matter was adjourned for sentence.
3. When the matter again came before the Local Court on 20 November 2018, the plaintiff took issue with the facts. As a result, Huntsman LCM vacated the sentence hearing date of 13 December 2018 and listed the matter for a contested facts hearing on 13 February 2019. Huntsman LCM asked the plaintiff whether he was withdrawing his plea of guilty. He answered in the negative and confirmed that he was merely disputing the facts. The plaintiff added: "…the Crown have included significant material, which I would submit is irrelevant under the De Simoni principle. And basically there - my position will be, I can only be punished for what I've pleaded guilty to. Extraneous matters, which would have justified without doubt a more serious charge cannot be taken into account. And that is the main factual argument." (20/11/18, tr. 5.1-.6)
4. The plaintiff was to meet with Mr Currie-Nguyen from Community Corrections for the purposes of a sentence assessment report. In a report dated 11 February 2019, Mr Currie-Nguyen said: "The Court is advised that Community Corrections are unable to prepare the requested Sentencing Assessment Report. Mr Sayer-Jones reported to City Community Corrections on 14 January 2019 and declined to participate or provide consent with regard to the assessment process in a manner which would enable the assessment to be completed."

The plaintiff's application for a permanent stay or to withdraw the plea

The hearing before Greenwood LCM on 13 February 2019

1. The matter came before Greenwood LCM on 13 February 2019 for the disputed facts hearing. The witnesses were present to prove the facts in the Crown's statement of facts.
2. Ms Moore, who appeared for the DPP, informed Greenwood LCM that, on 29 October 2018, the plaintiff had entered pleas of guilty to sequences 4 and 15 and that sequences 3-14 and 16-17 had been withdrawn. She also informed the magistrate that sequences 1 and 2 had previously been withdrawn. Ms Moore told the magistrate that the plaintiff had indicated that he proposed to apply for leave to withdraw his plea. The plaintiff informed the court that he had obtained legal advice over the Christmas break as a result of which he sought a permanent stay of the proceedings. He submitted that if the stay were not granted he would appeal to this Court. The plaintiff raised the decision of the High Court in Jamieson v The Queen; Brugmans v The Queen (1993) 177 CLR 574; [1993] HCA 48 (Jamieson) and contended that its effect was that he was immune from prosecution on the charges to which he had pleaded. Ms Moore submitted that Jamieson was distinguishable from the present case as, although the investigation had indicated that the civil claims were baseless, the prosecution case did not rely on that matter. She informed the court that the offences were founded on the plaintiff's false statements that the statements of claim had been served on the defendants.
3. Ms Moore foreshadowed what the Crown's position would be if the plea were permitted to be withdrawn as follows: "If your Honour is against me in terms of the timing of considering the application, in my submission the matter should stand in the list while I have police create the further CANs, and re-lay the offences under s 319 which were withdrawn. They're the offences of perverting the course of justice, and I've indicated already to the Court why they were withdrawn and why the prosecution should be given the opportunity to place those matters back before the Court. What the offender then seeks to do with those matters back before the Court is a matter for him." [13/2/19, tr. 13.42-.49]
4. At the conclusion of the hearing on 13 February 2019, her Honour adjourned the matter (the plaintiff's application to traverse his plea and for a stay) part-heard to 4 April 2019 in order that a transcript could be obtained of the hearing on 29 October 2019 at which his plea had been taken.

The hearing on 4 April 2019 of the plaintiff's application to withdraw his plea

1. The hearing of the plaintiff's applications was resumed on 4 April 2019. The plaintiff relied on Jamieson to argue that the charges were not known to the law. He also relied on his affidavit sworn 1 April 2019 in which he said that he was innocent of the charges. He deposed that he had Bipolar Disorder but has not been able to obtain a psychiatric report detailing his mental health issues. He also deposed that he had felt significant pressure to plead guilty by reason of the conduct of Ms Moore. Further, he deposed that he had assumed, when pleading guilty, that he would receive the "maximum discount" and that if he had realised that the Crown would only submit that a discount of 20% was appropriate he "would never have entered a plea". The plaintiff deposed, in paragraph 111(iii) of his affidavit: "Secondly, the hearing on 29th October 2018 went totally off the rails for the following reasons. I say the following things about the hearing: … (iii) But before I entered the plea I came to Court in a highly depressed and unfocused state. Before I entered Court Ms Moore said to me words to the affect [sic] that 'if you don't plead guilty I would be very surprised if you did not get community service.'"
2. In an affidavit sworn on 3 April 2019, Ms Moore deposed as to relevant matters, including that she had not discussed penalty with the plaintiff and had communicated with him by email except in certain specified situations referred to above. She deposed that the plaintiff had said to her outside the courtroom on 29 October 2018: "I am pleading guilty in line with the plea offer."
3. The affidavits were read and objections ruled upon. Both the plaintiff and Ms Moore were cross-examined. When it was put to the plaintiff that what he deposed in paragraph 111(iii) did not happen, he insisted that it had. He denied that the only conversation he had had with Ms Moore outside the courtroom on 29 October 2018 was that he told her, "I am pleading guilty in line with the plea offer." It was put to the plaintiff in cross-examination that he sought to withdraw his plea because he was concerned about the prospect of having to comply with a Community Corrections Order. He denied this proposition.
4. The plaintiff cross-examined Ms Moore. Ms Moore accepted that there had been no statement of facts agreed between the parties. She said that she had not asked the plaintiff to sign the statement of facts because she knew that they were not agreed. Ms Moore said that the plaintiff did not seem to be in any different state on 29 October 2018 than he had been at any other time and that he did not appear to be upset or emotional. Ms Moore denied that she had told the plaintiff on 29 October 2018, "If you don't accept the plea offer, you will go to prison."

The reasons of Greenwood LCM

1. At the conclusion of the hearing on 4 April 2019, Greenwood LCM gave an ex tempore judgment. Her Honour set out the relevant principles for withdrawal of a plea. She rejected the plaintiff's evidence in paragraph 111(iii) of his affidavit and found that the evidence did not support the plaintiff's allegation that he was suffering from mental illness or stress at the time the plea was entered on 29 October 2018 or that Ms Moore had acted in an overbearing manner.
2. Her Honour distinguished Jamieson because her Honour did not consider that the immunity attaching to statements made in judicial proceedings extended to the filing of false affidavits in the proceedings. Her Honour said: "So did the making or communication of the assertion here - did it take place for each of the matters before the Court in the ordinary course of a proceeding in a Court of justice, and therefore within the protection of the immunity principle? … There may be an application for judgment against a defendant in default. Unless otherwise ordered by the Court, there must be an affidavit in support and an affidavit of service of the statement of claim. Under s 13 of the Civil Procedure Act 2005 the chief magistrate has delegated these powers to registrars of the Court. So after filing the statements of claim, Mr Sayer-Jones later lodged documents where he lied to the Court about the steps that had been taken in the proceedings. The purpose of these lies was to obtain default judgments and enforcement orders, orders that are procedural and administrative in nature, not judicial. I say that they are not judicial matters because they do not involve a decision on the merits. The fact that default judgment can be set aside by the Court shows that it is not a judicial decision on the merits. But more importantly, he lied on oath in the affidavits that he signed. These were affidavits that he gave to the Court. These are not unverified pleadings. These factors reflect an entirely different factual scenario to the cases relied on. I FIND THERE IS NO IMMUNITY FROM PROSECUTION IN RESPECT OF THE CHARGES TO WHICH MR SAYER-JONES HAS PLEADED GUILTY. THE TRAVERSAL APPLICATION THEREFORE FAILS."
3. Her Honour dismissed the plaintiff's application for withdrawal of the plea. The plaintiff withdrew his application for a stay and foreshadowed an appeal to this Court.
4. At the conclusion of the hearing on 4 April 2019, the proceedings were stood over to 7 June 2019 for a disputed facts hearing with an estimate of one day.

The commencement of proceedings in this Court

1. On 10 April 2019 the plaintiff commenced the present proceedings by filing a summons in this Court under s 52(1) of the Crimes (Appeal and Review) Act. He purported to appeal against his two convictions, although no orders for conviction were made until 7 June 2019. The appeal was arguably premature as it was commenced prior to the material date. However, no point was taken as to this matter. Further, the relief claimed in the summons included an application for a stay of the proceedings in the Local Court, which were continuing as at the date of its filing.
2. On 7 May 2019 the plaintiff filed a notice of motion in this Court seeking a stay of the proceedings in the Local Court, including a stay of any order for imprisonment which might be imposed on him. The notice of motion was dismissed by Wilson J on 14 May 2019, in part on the basis that no conviction had yet been ordered. In his written submissions before me, the plaintiff indicated that he applied for legal aid on 23 May 2019 as a consequence of the dismissal of his application for a stay.
3. The plaintiff filed a further notice of motion in this Court on 24 May 2019, seeking a determination of a separate question. This motion was heard and dismissed by Johnson J on 9 July 2019.

The sentence

1. On 15 May 2019, the plaintiff filed a document entitled "Sentencing Memorandum" in the Local Court in which he withdrew his request for a disputed facts hearing.

Nature of hearing on sentence

1. By email dated 3 June 2019, the plaintiff wrote to the Local Court and the DPP and said, of present relevance: "[T]here is no need for any witnesses to attend because I don't dispute facts but only the relevance of them and the use to which they can be put…"

The plaintiff's application for an adjournment

1. At the commencement of the proceedings on sentence on 7 June 2019 before Greenwood LCM, the plaintiff indicated that if the Crown was to submit that a full-time custodial sentence could be imposed, he would seek an adjournment to obtain legal representation. He also applied for an adjournment on the basis of s 57 of the Legal Aid Commission Act 1979 (NSW). The plaintiff alleged that the solicitor to whom his matter had been allocated had told him that he was not able to attend court on 7 June 2019. The magistrate refused the adjournment on discretionary grounds and held that, because legal aid had been granted to the plaintiff, s 57 of the Legal Aid Commission Act did not apply.

The statement of facts

1. Two matters were deleted from the statement of facts on the basis that their inclusion would breach the principle in The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 that a sentencing judge is prohibited from taking into account a circumstance of aggravation with which an offender has not been charged which would render the offender liable to a more severe penalty. The plaintiff indicated that, otherwise, he did not dispute the statement of facts which is summarised below.
2. The statement of claim referred to in the sequence 4 charge named as the plaintiff Marlinspike Debt Acquisitions Pty Ltd, of which the plaintiff was a director. The defendants in the sequence 4 proceedings were The Undone Pty Ltd, RJC Carriage No 2 Pty Ltd, Richard Crampton (who was a director of both companies) and Georgia Martin and Sara Donaldson (who were directors of The Undone Pty Ltd).
3. The statement of claim referred to in the sequence 15 charge named as plaintiff Quick Collect Pty Ltd, of which the plaintiff was a director. The defendant in the sequence 15 proceedings was Alison McGuigan. The statement of facts recorded that Ms McGuigan was in hospital from 14 January 2018 to 6 March 2018.
4. Notwithstanding that the statements of claim had not been served, the plaintiff represented that they had been, as a result of which default judgments were entered ($78,919 in the proceedings brought by Marlinspike Debt Acquisitions Pty Ltd; and $10,198 in the proceedings brought by Quick Collect Pty Ltd). In reliance on the default judgments, the plaintiff applied for garnishee orders on various bank accounts of the judgment debtors (the defendants to the statements of claim).
5. As a result of the default judgment obtained in favour of Marlinspike Debt Acquisitions Pty Ltd the following amounts were garnisheed from the accounts of the defendants referred to below: Date Amount Defendant 11 December 2017 $9,266.39 The Undone Pty Ltd 12 December 2017 $2,896.74 RJC Carriage No 2 Pty Ltd 13 December 2017 $229.20 Richard Crampton 13 December 2017 $12.86 Georgia Martin 15 December 2017 $50 Crampton and Donaldson (joint account)

1. As a result of the default judgment obtained in favour of Quick Collect Pty Ltd, the sums of $200 and $700 were garnisheed from the accounts of Ms McGuigan, some of which comprised payments of her disability pension.

The plaintiff's reliance on this acceptance of the facts in the statement of facts

1. Notwithstanding the listing of the matter for a contested facts hearing, the Crown witnesses were not required and the matter proceeded on the basis of the statement of facts, as amended, which was tendered by the DPP. The plaintiff said, in the course of his submissions before Greenwood LCM: "I abandoned the disputed facts hearing totally. Now there were six witnesses going to be called, it would've been perhaps a one to two day hearing, a massive outlay of public time and money by paying for subpoenas and the like, I have abandoned that, I have facilitated the course of justice in this matter big time." [7/6/19, tr 20.49-21.3]
2. In the course of his submissions on 7 June 2019, the plaintiff also said: "[B]y the way there is no doubt whatsoever that a conviction is absolutely mandated in this case. This will disqualify me from being a company director, it will disqualify me not just, these proceedings have rendered a legal career terminal, but it would also, so the chances of ever being a lawyer after these proceedings is an impossibility. The third issue is, under the Legal Profession Act, a person who is convicted cannot even work in a law firm. So these three things, the director, the disqualification as a lawyer and not even being able to work in the law, are three collaterals harms that will punish me for the rest of my life. In many instances it is not the prison sentence that crucifies the offender, in the proverbial sense, it is the collateral infliction of the civil death that occurs on conviction. [7/6/19, tr. 23.2-.14] … My acknowledgment of a conviction and not seeking some sort of non-conviction outcome, indicates that I have some insight into the gravity of this offending, as does my active submission that I want to be supervised for the maximum length of the bond." [7/6/19, tr. 27.41-.44]
3. The plaintiff again confirmed his acceptance that there was no dispute that he should be convicted of the offences: 7/6/19, tr. 30.7-.11.

The sentencing judgment

1. At the conclusion of the hearing on 7 June 2019, her Honour entered a conviction on both counts on the basis of the plaintiff's guilty plea and gave an ex tempore judgment for the sentences imposed.
2. Her Honour allowed a discount of 20% for the utilitarian value of the plea of guilty and explained that the available discount (of 25%) was reduced because of the plaintiff's requirement for a contested facts hearing. Her Honour found the objective seriousness of the offending to be above mid-range and referred to the limited time over which the offences were committed, the level of planning and sophistication of the scheme (which involved the court's online system and a third party witness), the number of victims, the amount of money involved in sequence 4 and the vulnerability of the victim in sequence 15. The sentencing magistrate also took into account the fact that the plaintiff had not co-operated with Community Corrections during the pre-sentencing process.
3. When considering the plaintiff's subjective circumstances, the sentencing magistrate referred to the plaintiff's father's illness, his own mental illness, his lack of criminal record and the character references tendered on his behalf. Her Honour concluded that general deterrence was less relevant because of the plaintiff's mental illness but considered specific deterrence to be relevant due to the absence of evidence of remorse. Her Honour concluded that a sentence of imprisonment was appropriate and imposed a sentence for each offence of 6 months with no concurrency, which amounted to an overall sentence of one year's imprisonment. Her Honour ordered that it be served by way of an intensive corrections order.

This Court's jurisdiction

1. The plaintiff, having been convicted and sentenced by the Local Court, has a right to appeal to this Court against the conviction and sentence, but only on a ground that involves a question of law alone: s 52(1) of the Crimes (Appeal and Review) Act. The plaintiff may appeal to this Court on a question of fact or mixed law and fact but only by leave: s 53(1) of the Crimes (Appeal and Review) Act. This Court has no authority to engage in fact-finding on the merits of the case and is confined to making orders in accordance with ss 54 and 55 of the Crimes (Appeal and Review) Act: B & L Linings Pty Ltd v Chief Commissioner of State Revenue (2008) 74 NSWLR 481; [2008] NSWCA 187 at [38]-[70] (Allsop P) and [144]-[150] (Basten JA).
2. This Court has power pursuant to s 69 of the Supreme Court Act to review decisions for errors of law on the face of the record (which includes the reasons of the decision-maker) or for jurisdictional error.
3. As referred to above, these proceedings were commenced by summons filed on 10 April 2019. Various interlocutory applications have been made by the plaintiff which are not presently relevant. On 4 October 2019 the plaintiff filed a document entitled "Consolidated Final Summons" which sets out the relief claimed and the grounds.

The grounds

1. There are 75 grounds in all. Grounds 1-33 relate to conviction and grounds 34-75 relate to the sentence imposed. Because of my view as to the invalidity of the conviction, many of the grounds need not be addressed.

The Court Attendance Notice issue (ground 1)

1. The plaintiff alleged that the DPP lacked the statutory power to institute proceedings in respect of the court attendance notice charging sequences 4 and 15.
2. The provisions of the Criminal Procedure Act which govern procedures in the Local Court are relevant to this ground. Proceedings for an offence are to be commenced by court attendance notice: s 172 of the Criminal Procedure Act. Under ss 14 and 173 of the Criminal Procedure Act, a police officer is authorised to commence proceedings for an offence against a person. The police officer identified as the prosecutor in the court attendance notices in the present case was Detective Sergeant Robert McLennan. The form of the court attendance notice is set out in s 175 of the Criminal Procedure Act.
3. The plaintiff argued that the final court attendance notices to which he pleaded guilty were filed by the DPP but that the DPP had no power to institute proceedings in the Local Court for offences under s 192G.
4. I accept the DPP's submission that the DPP did not institute the proceedings constituted by the last two court attendance notices since they were filed by the named police officer, Deputy Sergeant McLennan, albeit at the request of the DPP. The DPP accepted that it had no power to institute proceedings in the Local Court for an offence under s 192G but submitted that, had Deputy Sergeant McLennan not agreed to do so, it could have filed an ex officio indictment in the District Court for the offences charged. As Deputy Sergeant McLennan was authorised to file the court attendance notices in the Local Court, there is no relevant invalidity in the notice by reason of the identity of the prosecutor named in them.
5. The present situation is to be distinguished from that considered by the Court of Appeal in Price v Ferris (1994) 34 NSWLR 704. In Price v Ferris it was held that the DPP, and not Inspector Price (the original police informant in the Local Court), had the sole authority to state a case to this Court or to appeal from a decision of the Local Court either to the District Court or to this Court, once the DPP had taken over the prosecution pursuant to s 9 of the DPP Act.
6. In the present case, the original informant (Deputy Sergeant McLennan) laid further charges at the request of the DPP. The original informant's role was not subsumed when he laid the charges because the DPP could not "take over" the prosecution of the further charges until after they were laid. The two charges of which the plaintiff pleaded guilty were laid by Deputy Sergeant McLennan after the DPP had taken over the conduct of the first two charges which were ultimately withdrawn. Accordingly, Deputy Sergeant McLennan was appropriately named as the prosecutor in the subsequent court attendance notices. Once the DPP takes over a matter pursuant to s 9 of the DPP Act, the DPP is deemed to be the prosecutor: s 9(4)(a). However, this does not retrospectively convert the DPP into the actual prosecutor from the time the charges were laid by the police informant. The effect of s 9(4) of the DPP Act is to entitle the DPP to conduct the proceedings after the charges have been laid. The DPP's powers, after it has taken over the proceedings, include the power to withdraw charges which have been laid by the original informant, as occurred with respect to the two charges under s 192E. For these reasons, this ground has not been made out.

The s 192G immunity issue (grounds 7 to 9 and 23 to 25)

The parties' submissions

1. The plaintiff submitted, on the basis of Jamieson, that he was immune from prosecution for sequences 4 and 15 because each offence charged was founded on statements made in, and for the purpose of, judicial proceedings. The relevant false statements, which were made for the purposes of obtaining default judgment, were that the victims had been served with the statements of claim.
2. The plaintiff made didactic submissions about the offences with which he ought to have been charged, as follows: "Nothing in the immunity would have prevented a prosecution for false swearing (Waterhouse); perverting the course of justice (El-Muhammed and Datillo); contempt of court; perjury (Datillo); or some Oaths Act offence. These are the offences to charge a false statement made to the Court; the Crown's reliance on the notion of a fraudulent statement made to a Court involving a private fraud is simply wrong. A fraud on a Court is a special kind of fraud (Vreneos) which is why[,] had the appellant [plaintiff] been prosecuted and sentence for such an offence he would be undoubtedly in prison right now (Datillo). It is without question a very serious crime and [to] charge it as a fraud offence trivialises rather than marks condemnation for the evil involved in lying to the Court." [Extract from pages 4-5 of the plaintiff's 'Outline of Oral Argument' handed to the Court at the commencement of the hearing on 19 November 2019.]
3. Ms Gleeson, who appeared on behalf of the DPP, argued that the plaintiff, having pleaded guilty, can be taken to have admitted the elements of the offence and was bound by that admission. Although she accepted, on the basis of Jamieson, that a sworn statement in an affidavit of service would fall within the immunity, Ms Gleeson contended that the representation to the Registrar that the statements of claim had been served did not. Further, she contended that there was wider criminality than merely the false statement that the statements of claim had been served and that the immunity did not apply. She also contended that the circumstance that the offences to which the plaintiff pleaded guilty were not known to the law was only one factor relevant to the question whether there was a miscarriage of justice such as would warrant this Court disturbing the magistrate's refusal of the plaintiff's application to withdraw his plea. I understood the DPP to contend that the Court should also have regard, in its assessment of whether there was a miscarriage of justice, to the overall plea bargain, which included that the charges for more serious offences (under ss 319 and 192E) were withdrawn in return for a plea to two rolled up charges under s 192G.

Jamieson

1. In Jamieson, the High Court allowed an appeal and quashed an indictment which alleged that, by serving a statement of claim on the Government Insurance Office (GIO), each accused was guilty of attempting to obtain a financial advantage by deception. The relevant provision, s 178BA of the Crimes Act, was the statutory predecessor of s 192E (the general fraud provision of obtaining property or financial advantage by deception). The facts, in summary, were as follows.
2. Ms Jamieson and Ms Brugmans were travelling in a motor vehicle when it was involved in an accident. Each commenced an action for damages claiming that, at the time of the accident, the vehicle was being driven by Ms Brugmans. Ms Jamieson's statement of claim alleged that the accident was partly caused by Ms Brugmans' negligence. Ms Brugmans alleged that the accident was caused by the negligence of a driver of an unknown vehicle which she had swerved to avoid. They served statements of claim on the GIO, as statutory insurer. The prosecution case was that Ms Jamieson was the driver of the vehicle and that the actus reus of the offence was the act of causing the statement of claim to be served on the GIO.
3. The High Court held, by majority (Deane, Dawson and Gaudron JJ), that the immunity from criminal prosecution on the basis of fraud which covered words spoken in proceedings extended to pleadings which had been filed and that therefore the indictment ought be quashed. Deane and Dawson JJ, at 584, rejected the Crown's argument that there was a distinction between the service of the statement of claim containing the assertion about the identity of the driver and the actual making of the false allegation in the statement of claim itself.
4. The question was regarded by the majority as one of statutory interpretation. Deane and Dawson JJ said, at 584: "There remains for consideration the question whether there is to be discerned in any relevant statutory provision a legislative intent precluding or qualifying the application of the general principle to the offence of dishonestly obtaining money by deception or to the offence of attempting to commit that offence. The relevant statutory provisions are s. 178BA (dealing with the substantive offence) and s. 344A (dealing with an attempt) of the Crimes Act 1900 (NSW). Examination of their terms discloses nothing at all which could properly be seen as evidencing a legislative intent to qualify or preclude the application of the relevant principle either generally in relation to "words spoken" in the course of judicial proceedings or particularly in relation to words contained in a statement of claim served upon a defendant in the course of such proceedings."
5. Gaudron J said at 596: "…[I]n the absence of express words or clear legislative intent, a statute is not construed as abrogating important common law rights, privileges or immunities. The effect of these related rules of construction is that s. 178BA of the Crimes Act must be construed on the basis that it extends neither to the instigation of judicial proceedings nor to words spoken in the course of and for the purpose of those proceedings." [Footnotes omitted.]
6. The correctness of Jamieson has not been doubted. For example, in Ollis v New South Wales Crime Commission (2007) 177 A Crim R 306; [2007] NSWCA 311 (Ollis), Ollis was alleged to have sworn two false affidavits in support of his application to pay a judgment debt by instalments. The New South Wales Crime Commission (the Commission) alleged that his conduct constituted an offence against s 178BB (the statutory predecessor to s 192G). The Court of Appeal (Beazley JA, Hodgson and Tobias JJA concurring) accepted that the consequence of Jamieson was that Ollis could not be criminally liable under s 178BB for such conduct. However, Beazley and Tobias JJA (Hodgson JA, contra, at [102]) decided that the Criminal Assets Recovery Act 1990 (NSW), which was not concerned with the potential criminal liability of a person, amounted to a statutory exception to the common law immunity.
7. In Business Computers International Ltd v Registrar of Companies [1988] 1 Ch 229 (Business Computers), the principle which underlies Jamieson was applied in the context of civil proceedings. It was argued that one litigant owed a duty of care to another litigant in connection with ascertaining the correct address for service of a court document (a winding-up petition). The statement of claim was struck out as failing to disclose a reasonable cause of action on the basis of the following statement in Cabassi v Vila (1940) 64 CLR 130 at 140-141 (Starke J); [1940] HCA 41: "No action lies in respect of evidence given by witnesses in the course of judicial proceedings, however false and malicious it may be, any more than it lies against judges, advocates or parties in respect of words used by them in the course of such proceedings or against juries in respect of their verdicts. … the rule of law is that no action lies against witnesses in respect of evidence prepared (Watson v. McEwan), given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice ..." [Footnotes omitted.]
8. Parliament, which can be presumed to know the law, has not moved to amend s 192G since Jamieson to extend the application of the provision to statements made in court proceedings.
9. The false statements alleged in the present case were that the relevant defendants had been served. As is evident from the charges, the statement that the pleading had been served was made for the purposes of obtaining default judgment and, in due course, a garnishee order. I do not discern any legislative intent in s 192G to abrogate the fundamental immunity recognised in Cabassi v Vila and Jamieson. Accordingly, s 192G must be construed on the basis that it does not extend to "words spoken in the course of and for the purposes of those proceedings". The statement by the plaintiff that the statements of claim had been served was made in the course of and for the purposes of the proceedings in the Local Court and is therefore covered by the immunity. Business Computers establishes that the immunity covers aspects of court proceedings beyond merely evidence in court or statements in pleadings but extends to matters such as the service of court process and statements concerning such service. The immunity is, as the majority said in Jamieson, to be regarded as a rule of statutory interpretation, with the result that s 192G does not cover the conduct alleged in the court attendance notices.

The relevance of the plea of guilty

1. Had the plaintiff been convicted of the two charges after a defended hearing as opposed to an order for conviction consequent upon a plea of guilty, the conviction would have been bad as a matter of law and would have been required to be set aside. The question is whether, as the plaintiff contended, this finding ought have resulted in his application to withdraw his plea being granted and/or his conviction being set aside or whether, as the DPP contended, the plea of guilty should stand, notwithstanding the underlying deficiencies.
2. The relevant principles were stated in Meissner v The Queen (1995) 184 CLR 132 at 157; [1995] HCA 41 as follows: "…It is true that a person may plead guilty upon grounds which extend beyond that person's belief in his guilt. He may do so for all manner of reasons: for example, to avoid worry, inconvenience or expense; to avoid publicity; to protect his family or friends; or in the hope of obtaining a more lenient sentence than he would if convicted after a plea of not guilty. The entry of a plea of guilty upon grounds such as these nevertheless constitutes an admission of all the elements of the offence and a conviction entered upon the basis of such a plea will not be set aside on appeal unless it can be shown that a miscarriage of justice has occurred. Ordinarily that will only be where the accused did not understand the nature of the charge or did not intend to admit he was guilty of it or if upon the facts admitted by the plea he could not in law have been guilty of the offence. But the accused may show that a miscarriage of justice occurred in other ways and so be allowed to withdraw his plea of guilty and have his conviction set aside. For example, he may show that his plea was induced by intimidation of one kind or another, or by an improper inducement or by fraud." [Footnotes omitted and emphasis added.]
3. It would appear that the plaintiff decided to plead guilty to two "rolled" up offences under s 192G(b) because he would thereby avoid prosecution for the more serious charges under ss 192E and 319 which the plaintiff had elected would be charged on indictment.
4. I am satisfied that the convictions ought be set aside, notwithstanding the plea of guilty, because the orders for conviction purported to have the effect of convicting the plaintiff of two offences of which he could not, as a matter of law, be criminally liable by reason of the immunity. To allow the convictions to stand would, in my view, amount to a miscarriage of justice as the provision which created the offence of which the plaintiff was convicted did not, as a matter of statutory construction, extend to the admitted conduct.
5. Such a course was accepted to be the appropriate one in Director of Public Prosecutions of the Commonwealth of Australia v Poniatowska (2011) 244 CLR 408; [2011] HCA 43 (Poniatowska) where the High Court, by majority (French CJ, Gummow, Kiefel and Bell JJ), dismissed an appeal from a decision of the Full Court of the South Australian Supreme Court (Poniatowska v Director of Public Prosecutions (Cth) (2010) 107 SASR 578; [2010] SASCFC 19) quashing convictions which had been ordered following a plea. Although the respondent had not only pleaded guilty to the charges but had also been sentenced, the plurality in the High Court regarded the conclusion that an omission to act was not sufficient, as a matter of law, to constitute the offence as "sufficient to dispose of the appeal": [38]. The Full Court (Doyle CJ and Duggan J) made no orders regarding withdrawal of the plea and, citing R v Liberti (1991) 55 A Crim R 120 at 121-122, concluded at [39]: "It follows that the appellant could not, in law, have been convicted of the offences charged in the complaint and this Court should set aside the convictions which were recorded following the pleas of guilty."
6. For these reasons, and on the basis of Poniatowska, I do not consider this to be a matter which ought simply result in my finding that the discretion of the magistrate to refuse the application to withdraw the plaintiff's plea of guilty to the two charges miscarried and an order to remit the matter to the magistrate. The objection to the conviction is so fundamental and goes to the heart of the alleged criminal liability on which the orders for conviction are said to be founded. As the Court of Criminal Appeal said in R v Liberti at 125 (Kirby P, Grove and Newman JJ agreeing): "An accused person will not always know the legal consequences of the facts to which he pleads guilty. He or she is normally entitled, where represented, to look to the lawyers to explain those facts for their legal significance. Ultimately, the accused is entitled to look to the court before which he or she comes to offer protection from a conviction which is not, in law, sustained by the facts. … Beyond the duty of the accused's lawyers, there is a duty in the court receiving the proceedings pursuant to s 51A of the Justices Act 1902 (NSW) to ensure that the accused may properly be convicted on the facts in respect of which the accused is charged: see s 51A(1)(d)(i) of that Act. This duty fell upon Judge Ford. It is a duty which must be taken seriously, as the Parliament intended. Ultimately, its application must be assured by this Court."
7. In these circumstances, I am persuaded that this Court ought allow the appeal and set aside the convictions pursuant to s 55 of the Crimes (Appeal and Review) Act.

The challenge to the magistrate's refusal of the plaintiff's application to withdraw the plea of guilty

1. As referred to above, the magistrate refused the plaintiff's application to withdraw the plea of guilty. Her Honour distinguished Jamieson and therefore considered the plaintiff's application on an erroneous legal basis. Accordingly, her Honour's discretion miscarried. However, for the reasons given above, it is neither necessary nor appropriate to remit the matter to the magistrate to permit the discretion to be re-exercised as I have come to the view that the conviction must be set aside as a matter of law.

The merits of the charge issue (grounds 10 to 17 and 26 to 33)

1. The plaintiff submitted that there were several other reasons why the charge could not have been made out. To this end, he sought to tender what he described as the "brief of evidence", which was a pink folder which he said contained all the evidence relied on by the prosecution against him. I rejected the tender and marked the folder, MFI 2. My reasons for doing so are that the matter has not been determined on its merits by the Court below. The conviction was ordered on the basis of the plaintiff's plea of guilty to both charges in the court attendance notices referred to above. In these circumstances, it would not be appropriate for this Court to approach the matter as if the plaintiff had been convicted after a contested hearing and the question was whether the finding of guilt was, in light of all the evidence adduced, open as a matter of law. I confirm that I have not considered the contents of MFI 2 in deciding this matter.

Remaining grounds

1. Because of the view to which I have come as to the unavailability of the charge to the conduct alleged against the plaintiff and the appropriate relief (the setting aside of the convictions), I do not propose to address the remaining grounds since they do not arise. In particular, the allegations of procedural fairness do not need to be determined because the convictions will be set aside. Whether the facts were otherwise sufficient to make out the offence does not arise because of the fundamental inapplicability of s 192G to false statements made in the course of and for the purposes of court proceedings. The numerous challenges to the sentence do not need to be determined because the setting aside of the convictions will result in the sentences falling away.

The relief claimed

1. For the reasons given above, I am satisfied that it is appropriate to allow the appeal and set aside the convictions.
2. The plaintiff sought an order for acquittal. An acquittal is appropriate where a court finds that the facts as found cannot, as a matter of law, justify a conviction. However, as the provision did not as a matter of statutory construction extend to the conduct alleged by reason of the Jamieson immunity, it is not appropriate that any acquittal be ordered. Just as a person cannot validly plead guilty to an offence unknown to the law, a court ought not purport either to convict or acquit a person of such an offence. Where a person has, as in the present case, been convicted of such an offence, the appropriate course is to set aside the conviction.
3. The plaintiff also pressed his claim for an injunction pursuant to s 23 of the Supreme Court Act restraining the DPP from commencing any further criminal proceedings against him "arising from the facts of this matter" (paragraph 5 of the Consolidated Final Summons). He submitted that the "plea bargain" was sufficient to dispose of all the charges which had previously been laid, including the charge under s 319 which he contended was the charge which was applicable and which ought to have been pressed. He relied on GAS v The Queen; SJK v The Queen (2004) 217 CLR 198; [2004] HCA 22 in support of the proposition that a plea bargain could constitute a binding agreement between the prosecutor and the offender. He contended that such an agreement would continue to bind the prosecutor even if the convictions entered on the basis of the plea were set aside as a consequence of the offences having been found to be unknown to the law.
4. In his written submissions filed on 20 October 2019, the plaintiff said, in support of the application for injunctive relief: "The appellant [plaintiff] not only seeks to set aside his conviction but seeks to bring his nightmare to an end with the issuance of an injunction to prevent the re-litigation of this matter by the Director of Public Prosecutions of any offence arising out of the facts of this matter. They had one chance: They blew it with a plea bargain to the wrong offence. Any person brings to the plea bargaining table with their right to appeal their conviction in hand; the Crown can ask a person to agree in writing not to appeal their conviction as a condition of the plea but they did not do so in the present case. The Crown got what they bargained for. They got a guilty plea and a sentence was imposed." [Footnote omitted.]
5. When I foreshadowed the possibility that, if the plaintiff were successful in these proceedings, he might leave himself open to be charged with a more serious offence under s 319, the plaintiff submitted orally: "[M]y position now is bring it on, charge me with it. I will be acquitted. That is my position because I did nothing wrong. But there will be, self‑evidently, a stay application if that were to commence." [19/11/19, tr 14.38-.40] "If the conviction is set aside it will focus the mind of the DPP, with respect, on ensuring that the correct offence is charged from day one and will not cause these convoluted, some might say Byzantine arguments about the elements of an offence. Perverting the course of justice and perjury fit the allegations in this case like a glove." [19/11/19, tr 15.37-.41]
6. The DPP opposed the injunctive relief sought, on the basis that it was presently hypothetical as it would be a matter for the police whether to lay different charges or for the DPP whether to file an ex officio indictment charging different offences, including under s 319.
7. As far as the evidence before me reveals, acquittals were not entered on any of the charges which had previously been laid. All that appears to have occurred is that the other charges were withdrawn. Although the DPP indicated, as part of the plea negotiations when the matter was in the Local Court, that it would not proceed on indictment for the other offences, including under s 319, if the plaintiff pleaded to the two offences under s 192G, the foundation for that agreement has been removed by my setting aside the plaintiff's convictions for the two offences under s 192G.
8. Section 156 of the Criminal Procedure Act would appear to be inapplicable since, as a consequence of my order setting aside the convictions, there could be no plea of autrefois convict and, as a consequence of the offences not being known to the law, it is not appropriate to order an acquittal, thereby making unavailable a plea of autrefois acquit. It is difficult to see any estoppel arising against the DPP in the present circumstances where the plaintiff has been the moving party in the present proceedings.
9. The question whether there is any impediment to the prosecution of the plaintiff for an offence which is available as a matter of law is, however, not one which ought presently be determined: R v Liberti, at 126 (Kirby P). I accept the DPP's submission that the question is presently moot. If, and when, it arises, it will be open to the plaintiff to move to strike out the charge or quash an indictment if he considers that he has grounds to do so. This Court ought not anticipate such a course, which might not arise. There are strong policy reasons why a court ought not intervene in the laying and prosecution of criminal charges: see the discussion in Jarrett v Seymour (1993) 46 FCR 557 at 565-568 (Lockhart and Beaumont JJ, Sheppard J agreeing) and at 573-575 (Sheppard J).

Costs

1. The parties agreed, at the conclusion of the hearing, that costs ought be reserved in order to give each party the opportunity to consider these reasons before addressing me on costs. The plaintiff has represented himself and seeks an order for costs to cover his disbursements. He has foreshadowed that it would be appropriate, if an order for costs was made in his favour, for an order to be made under s 98(4) of the Civil Procedure Act 2005 (NSW) that costs be paid in a gross sum. I note that the plaintiff has largely been successful in obtaining the relief he has sought but that much of the submissions and the contents of the court book have concerned issues which did not need to be determined. If agreement as to costs cannot be reached, the parties have liberty to apply.

Orders

1. For the reasons given above, I make the following orders: 1. Appeal allowed. 2. Pursuant to s 55(1) of the Crimes (Appeal and Review) Act 2001 (NSW), set aside the convictions of the plaintiff for the two offences under s 192G(b) of the Crimes Act 1900 (NSW). 3. Reserve costs. 4. Grant liberty to apply to re-list the matter on the question of costs.

Amendments 27 November 2023 - Publication restriction removed - judgment republished 12 June 2024 - Publication restriction removed - judgment republished DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 12 June 2024